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Petitioner, a prisoner of the State of North Carolina, has submitted a paper writing
which the Court has reviewed and construes to be a petition under 28 U.S.C. § 2254 for writ
of habeas corpus by a person in state custody. The Clerk of Court received the submission
on November 14, 2006, which Petitioner had dated as of November 2, 2006. For the
1. Petitioner has not used the required § 2254 Forms. Rule 2, R. Gov. § 2254
Cases. The Clerk will forward to Petitioner the proper forms.
2. Petitioner has failed to indicate that state court remedies have been exhausted.
[28 U.S.C. § 2254(b).]
3. Filing fee was not received or affidavit to proceed in forma pauperis was not
submitted or signed by Petitioner. [Attached instructions and Rule 3(a), Rules
Governing § 2254 Cases.]
Dockets.Justia.com
Case 1:06-cv-01018-JAB-WWD Document 3 Filed 11/21/2006 Page 1 of 2
Because of these pleading failures, this particular petition should be filed and then
dismissed, without prejudice to Petitioner filing a new petition on the proper habeas corpus
forms with the $5.00 filing fee, or a completed application to proceed in forma pauperis, and
otherwise correcting the defects noted. The Court has no authority to toll the statute of
limitation, therefore it continues to run, and Petitioner must act quickly if he wishes to pursue
this petition. See Spencer v. Sutton, 239 F.3d 626 (4th Cir. 2001). To further aid Petitioner,
the Clerk is instructed to send Petitioner a new application to proceed in forma pauperis, and
In forma pauperis status will be granted for the sole purpose of entering this Order and
Recommendation.
IT IS THEREFORE ORDERED that in forma pauperis status is granted for the sole
purpose of entering this Order. The Clerk is instructed to send Petitioner § 2254 forms,
IT IS RECOMMENDED that this action be filed, but then dismissed sua sponte
without prejudice to Petitioner filing a new petition which corrects the defects of the current
petition.
_____________________________________
Wallace W. Dixon, U. S. Magistrate Judge
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